Attending to details protects your Miranda rights

On behalf of Chris Voltin of Goff Voltin, PLLC posted in Criminal Defense on Friday, June 9, 2017.

Military people know the drill of reciting name, rank and serial number if captured by the enemy. It's part of their training about complying with the rules of war. In the civilian world, the closest analogy to that might be if you are suspected of a crime and face questioning by the police.

There is no formal training for civilians about what you can and can't do under the rules of law. The only inkling you might have probably comes from all the crime shows on TV. The words of the Miranda warning let you know you have a right to remain silent and the right to attorney before questioning, but do you know how to exercise those rights?

Invoking Miranda properly

Exercising your Miranda rights is not just a matter of reciting name, rank and serial number. Here are some useful things to keep in mind if you find yourself in police custody.

Police don't have to issue the warning before you are arrested. The rule as defined by the Supreme Court is that police must give you the Miranda warning before formal questioning. They can question you informally, but what you say before being warned can't be used against you in court. Question: In the confusion of the situation, will you remember being warned?

You must be clear invoking your rights. You don't have to wait for the police to recite the warning before you invoke your rights to remain silent and to call an attorney. Once you confirm you are in police custody, you can exercise your rights yourself, but you have to be perfectly clear about it. The way to do that is with a plain statement such as, "I invoke my right to remain silent and I want to speak with an attorney."

You can inadvertently waive your rights. Technically, you can't waive your right to remain silent even if you don't invoke it clearly. However, if you maintain silence in initial questioning, are informed of your rights and then say something voluntarily, police could infer you have waived your rights. Your statements could be fair game as evidence.

Service people have a code of conduct and training on how to follow it. Civilians have laws, but little or no formal training. Consulting an experienced attorney fills the gap.

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